ORIENTAL INSURANCE COMPANY LTD vs Rajiv Bhadani Krishna Bhavan

THIS revision petition has been filed by the Oriental Insurance Company Ltd., (hereinafter referred to as ''Petitioner'') against the order of the Bihar State Consumer Disputes Redressal Commission, Patna (in short ''the State Commission''), whereby the appeal of Shri Rajiv Bhadani (hereinafter referred to as ''Respondent'') was allowed.

THE brief facts of the case are that the Respondent took a medi-claim policy for the period 09.04.2002 to 08.04.2003. On 11.04.2002, while the Respondent was in Calcutta, he felt uneasiness coupled with chest pain. THErefore, he consulted a doctor who advised him to consult a heart specialist Dr Ashok Dhar at Surakasha Nursing Home. Tests were conducted at the Nursing Home. On the advice of Dr Dhar, the Respondent under went Coronary Angiography/ Angioplasty on 15.04.2002 and was under treatment in that Nursing Home till 25.04.2002. On his return to Gaya on 26.04.2004, Respondent informed the Petitioner about his treatment at Calcutta vide letter dated 28.04.2002 and thereafter he filed a claim on 21.06.2002. THE Petitioner repudiated the claim on the grounds that as per exclusion clause 4.2 and 4.3 of the Insurance Policy any medical treatment/ hospitalization claim made within 30 days of the commencement of the policy is not maintainable. In the instant case, the claim was made for treatment only five days after the medi-claim policy was taken by the Respondent. Aggrieved by the repudiation of his claim, the Respondent filed a complaint before the District Forum which dismissed the complaint and concluded that the Respondent/ complainant''s case is hit by the exclusion clause and therefore, the claim was rightly repudiated.

The Respondent thereafter filed an appeal before the State Commission where he pleaded that the District Forum had erroneously dismissed his complaint. According to the Respondent his case is covered by the saving proviso to Clause 4.2 and 4.3 which stipulates that the exclusion shall not apply ''if in the opinion of a panel of medical practitioners constituted by the ''Company for the purpose, the insured person could not have known of the existence of the disease or any symptoms or complaints thereof at the time of making the proposal for insurance to the company''.

THE Respondent has stated that he had no pre-existing knowledge about the existence of any heart problem particularly since he had undergone an ECG and medical check-up in December 2001, while taking an insurance policy with the LIC. THEre was also no symptoms of any such problem prior to 11.04.2002. THE Petitioner did not constitute a panel for the purpose before whom he could have proved these facts. THE Respondent has also denied the contention made by the Petitioner before the District Forum that he actually did not undergo any treatment in Calcutta and the medical bills etc. were fabricated by him. The State Commission after considering the evidence filed by both the parties allowed the appeal and set aside the order of the District Forum on the following grounds:

LEARNED Forum failed to consider following facts: Trouble of chest pain related to heart may come at any time and there may not be any previous known history of any heart diseases and therefore, it cannot be said to be a case of suppression attracting clause 4.2. It appears that complainant had taken an LIC Insurance policy in December 2001 and declared himself fit and LIC got a electro cardiogram report and doctor of Insurance Company found everything normal and regular and conclusion is ''within normal limits; hence, it cannot be said to be a history of any heart problem, rather it supports the case of the complainant. In the written submission the OP claimed that no treatment took place at Calcutta which indirectly supported that complainant had no heart problem from before; at the same OP did not give any evidence to support that vouchers and bills were obtained by influence. Hence, we are of the view that case of complainant is covered by saving clause of clause 4 and opposite party is liable to pay the claim of Rs.1,33,486.78 paise to complainant. OPs are also liable to pay Rs.10,000/- (Rupees ten thousand) as compensation for harassment and mental agony alongwith litigation cost of Rs.10,000/-. It must be paid within 2 months from today failing which interest @ 8% per annum will be payable from the expiry of two months period till payment. Learned Counsel for both the parties made their oral submissions. Counsel for the Petitioner/ Insurance Company again referred to the exclusion clause and stated that since the Respondent had filed the claim for medical treatment within 30 days of his having taken the policy his case was clearly decided as per clause 4.2 and 4.3 of the Insurance Policy. Learned Counsel for the Respondent has stated that the exclusion clause in 4.2 and 4.3 will not apply in view of the saving clause which states that the exclusion clause will not apply if in the opinion of panel of medical practitioners constituted by the Company for the purpose, the insured person could have known of the existence of the disease or any symptoms or complaints thereof at the time of making the proposal for the insurance to the Company. In the instant case, the State Commission on the basis of credible evidence produced by the Respondent has concluded that the Respondent was in good health and had no prior knowledge of the existence of any disease. Also the onus of constituting a panel of medical practitioners was with the Petitioner, which they did not do. Therefore, the claim was wrongly repudiated.

WE have considered the contention made by both Counsel and have also gone through the evidence on record. There is no ambiguity in clause 4.2 and 4.3 as well as the saving clause which clearly indicates that though the exclusion clause pertains to the first 30 days from the date of commencement of the policy but this will not apply if a panel of medical practitioners constituted by the Petitioner company opine that the insured person did not know about the existence of the disease at the time of applying for the insurance. Unfortunately, the learned Counsel for the Petitioner could not explain why such a panel was not constituted. On the other hand, we agree that the Respondent has been able to provide credible evidence before the State Commission that he had no history of heart ailment and the recent ECG and medical examination proves this fact.

IN the light of the above facts we see no reason to disagree with the order of the State Commission which has reached the conclusion on the basis of clear-cut and credible evidence in favour of the Respondent. Order of the State Commission is therefore upheld in toto, with no order as to cost.